The Moral and Legal Bankruptcy of Abortion

Below is a chapter from my treatise on the Constitution, The Kiss of Judice, the Constitution Betrayed. A Coroner’s Inquest

Section 21: Roe and Progeny

I Too Had Love To Give

I’d have been there for you
when you were grey and old
Now all that you will have
is pain and remorse untold.

Was it not in Earthly pleasure
that you and daddy made me?
Why then for Worldly treasure
the farewell that you bade me?

When you killed me, no tears,
just a sigh relief.
But one day, Dearest Mother
you will know the deepest grief.

Why was I not adopted?
could not someone else enjoy
watching me grow up to be
a delightful girl or boy?

Why did you slay me mother?
Why not let me live?
You would have Loved me Mother
I TOO HAD LOVE TO GIVE!!!

—Rick Christensen[1]

 Précis: Roe and “Progeny” ● Hippocratic Oath ● Abortion condemned in 1588 ● History of abortion in America ● False foundation of “legal abortion”—Griswold v. Connecticut ● The barbaric Roe v. Wade ● Its reaffirmation in Planned Parenthood v. Casey ● The idiotic “mystery of life” passage ● Abortion extended to live births ● Biological case against abortion and for personhood ● The legal case ● Constitution prohibits abortion ● The three provisions which constitutionally prohibit all abortions except in the very rare case of danger to the life of the mother

 21.1 Hippocratic Oath

Coroner: Let us first hear the ancient Greek Physician Hippocrates and his condemnation of abortion:

Hippocrates: “I swear by Apollo the Physician and Asclepius and Hygieia and Panaceia and all the gods, and goddesses, making them my witnesses, that I will fulfill according to my ability and judgment this oath and this covenant:

To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art–if they desire to learn it–without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken the oath according to medical law, but to no one else.

I will apply dietic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.

I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.

Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.

What I may see or hear in the course of treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep myself holding such things shameful to be spoken about.

If I fulfill this oath and do not violate it, may it be granted to me to enjoy life and art, being honoured with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.”[2]

Coroner: In the 1870s, many American medical schools chose to abandon the Hippocratic Oath as part of graduation ceremonies, usually substituting a version modified to something considered more politically and medically correct.[3]

  • 21.2 Pope Condemns Abortion in 1588

Let us now introduce Mr. Sam Guzman who has written on another early condemnation of the barbarous practice.

Mr. Sam Guzman:[4] Abortion didn’t start with Roe v. Wade, and neither did the Catholic Church’s opposition to it. Way back in 1588, Pope Sixtus V issued a Papal Bull, called Effraenatam, excommunicating anyone directly involved in abortion, and calling on civil authorities to punish abortionists severely. He uses strong language to condemn abortion, calling attacks on the unborn person “brutal, cruel, ferocious and inhuman crimes.” Here’s some more from the declaration:

Pope Sixtus V: Who will not condemn to a most grave punishment the impiety of him . . . who has deprived children of life before they could naturally see light or could be protected by maternal body from ferocious cruelty? Who will not abhor the cruelty and unrestrained debauchery of impious men who have arrived into such a state of mind that they procure poisons in order to extinguish the conceived fetuses within the viscera, and pour them out, trying to provoke by a nefarious crime a violent and untimely death and killing of their progeny?  Finally who will not condemn to a most grave punishment the crimes of those who with poisons, potions and evil actions sterilize women or impede that they conceive or give birth by pernicious medicines and drugs?

We are willing to exterminate in our times also this evil as much as We can by the strength given to Us by the Lord….

Mr. Guzman: While it is fascinating to see the Church fighting abortion centuries ago, it is also a grim reminder that the battle to protect the sanctity of human life will continue as long as their are those who would harm the innocent unborn person.

Coroner: And the battle continues on with ever-more gruesomeness under the guise of “sexual autonomy”. Here’s a short history of abortion in America.

  • 21.3 Brief History of Abortion in America

Oxford Companion:[5] It was not until the latter half of the nineteenth century that criminal sanctions against abortion became widespread, and not until the latter half of the twentieth century that the notion of a constitutional right to sexual autonomy took hold in the public mind. That development guaranteed that abortion would turn into a judicial question. * * *

As late as the 1960s, abortion was still illegal everywhere in the United States, except to save the mother’s life. The revitalization of feminism in the late 1960s gave impetus to the abortion rights movement. A portent of changing opinions was the 1962 Model Penal Code, in which the American Law Institute (ALI) recommended that abortion be legal when the pregnancy resulted from rape or when the baby was likely to be seriously disabled. Fourteen states adopted some or all of the ALI recommendations between 1965 and 1970. New York, Alaska, and Hawaii repealed their abortion laws outright.

* * *

  • 21.4 The Court Lays a False ‘Foundation’ for Legal Abortion

Coroner: Meanwhile the court began to lay the foundation for the legalization of abortion, the ultimate form of birth control.

Oxford Companion:[6] Griswold v. Connecticut (1965) disposed of the last surviving laws against birth control and established a constitutional right to a realm of privacy. The Supreme Court ruled that the right to use contraceptives lay within a protected “zone of privacy” created by “penumbras” emanating from several provisions of the Bill of Rights. Many legal scholars found this argument a less than convincing justification for the judicial creation of a right nowhere mentioned in the Constitution, but the ruling established a right whose content would be defined and explained by later decisions.

  • 21.5 The Ignominious Roe v. Wade

Coroner: Then, eight years later, the court extended its fabricated right of privacy to the barbaric practice of abortion in a decision that could only be described as the use of raw legislative power—specifically, because of the intricate trimester scheme established.

Oxford Companion:[7] In Roe v. Wade[8] [1973] a majority of seven justices ruled that the “right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”. Justice Harry Blackmun’s majority opinion emphasized “the detriment that the state would impose on the pregnant woman” and “the distress, for all concerned, associated with an unwanted child”; and struck down the anti-abortion statutes of Texas and Georgia on the ground that they violated the woman’s right to privacy, which the opinion located in the Due Process Clause of the 14th Amendment.

Coroner: Justice Blackmun also mentioned the 9th Amendment as a source of abortion rights.

Justice Blackmun: This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.[9]

Coroner: It was left to Justice’s White and Rehnquist, dissenting, to dispose of Blackmun’s “reasoning”.

Justice White: With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.[10]

Coroner: Having created the right to abortion, the court proceeded, unlawfully acting as a legislature, to set out its intricate trimester rules.

Oxford Companion:[11] In the first trimester, the state had no power to restrict abortion; beginning with the second trimester, the state might regulate, but not prohibit, abortion; and in the third trimester, the state might prohibit abortion except when necessary for the mother’s life or health.

Coroner: The trimester framework was finally scrapped some sixteen years later in Webster v. Reproductive Health Services (1989).[12]

Oxford Companion:[13] In upholding a Missouri law that declared that life began at conception, forbade the use of any public funds and facilities for abortion, and required viability testing in abortions after twenty weeks, the Court sustained restrictions similar to those it had invalidated in Akron[14] and Thornburgh.[15] Webster came within one vote of overturning Roe outright. O’Connor supported the restrictions but refused to join four other justices in reversal.

Coroner: O’Conner remains one of the greatest villains on the Court. After saying that Roe was on a collision course with itself,[16] at the next opportunity, she proceed to uphold it.

  • 21.6 Roe Reaffirmed

That opportunity arose in Planned Parenthood v. Casey (1992).[17] In what must be one of the worst-ever pieces of legal writing, perhaps second only to Blackmun’s in Roe, Justice Souter joined O’Connor and Kennedy in a plurality opinion reaffirming the central holding of Roe described by Oxford as: “the right to an abortion before viability, a state’s power to impose restrictions after viability, and a state’s legitimate interests in protecting maternal health and fetal life throughout pregnancy.”[18]

Here is the ghastly “mystery of life” passage the trio (per Justice Kennedy) used to uphold Roe:

Justice Kennedy: Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. * * * Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird . . . . Our precedents “have respected the private realm of family life which the state cannot enter.” * * * These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

Coroner: And here’s the infamous mystery passage:

Justice Kennedy: At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.[19]

Coroner: Gag. The most odious, nauseous passage in judicial history. Yet, as loathsome as Roe and Casey were and still are, things would still get worse.

  • 21.7 Abortion ‘Rights’ Extended to Live Births

Oxford Companion: [In 2000] Stenberg v. Carhart[20] struck down a Nebraska law prohibiting what the anti‐choice movement calls “partial‐birth abortion” (a technique called dilation and extraction that is used in late term procedures) on the grounds that the law was unconstitutionally vague and excessively burdened the woman’s choice.

Coroner: Caution: Reading the opinion, especially the parts describing the “technique”, will make almost anyone sick; only those with the strongest stomachs should dare.

The case drew these two very strong dissents, the first of which briefly described the barbarity of and the massacre by the “doctor.”

Justice Thomas, dissenting, described “the resemblance between the partial birth abortion procedure and infanticide” citing “the testimony of one nurse who observed a partial birth abortion procedure”. ‘The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a highpowered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp.’”

Coroner: The other dissent came from Justice Scalia.

Justice Scalia: I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu[21] and Dred Scott[22]. The method of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”—which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)—is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.[23]

* * *

  • 21.8 The Case Against Abortions

Coroner: We start with the proposition that the fetus is a life and therefore a person, both biologically and colloquially. The biological is given just below for which there is vast material readers can find for themselves in other places. The colloquial and common sense case is also plain. As Ann Coulter once said, no one gives “a fetal shower” or says “My fetus is due next May”, or “My fetus’s tiny legs are kicking my ribs.”

  • 21.81 The Biological Case Against Abortions

Association of Pro-Life Physicians:[24] There is a tremendous consensus in the scientific community about when life begins. This is hardly controversial. If the claim were made that life was discovered on another planet, for example, there are well-defined criteria to which we could refer to conclusively determine whether the claim was accurate.  How do scientists distinguish between life and non-life?

A scientific textbook called “Basics of Biology” gives five characteristics of living things; these five criteria are found in all modern elementary scientific textbooks:

  1. Living things are highly organized.
  2. All living things have an ability to acquire materials and energy.
  3. All living things have an ability to respond to their environment.
  4. All living things have an ability to reproduce.
  5. All living things have an ability to adapt.

According to this elementary definition of life, life begins at fertilization, when a sperm unites with an oocyte. From this moment, the being is highly organized has the ability to acquire materials and energy, has the ability to respond to his or her environment, has the ability to adapt, and has the ability to re-produce (the cells divide, then divide again, etc., and barring pathology and pending reproductive maturity has the potential to reproduce other members of the species).  Non-living things do not do these things.  Even before the mother is aware that she is pregnant, a distinct, unique life has begun his or her existence inside her.

Furthermore, that life is unquestionably human.  A human being is a member of the species homo sapiens.  Human beings are products of conception, which is when a human male sperm unites with human female oocyte (egg).  When humans procreate, they don’t make non-humans like slugs, monkeys, cactuses, bacteria, or any such thing. Empirically-verifiable proof is as close as your nearest abortion clinic: send a sample of an aborted fetus to a laboratory and have them test the DNA to see if its human or not.  Genetically, a new human being comes into existence from the earliest moment of conception.

“I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect.  Similarly, I will not give to a woman an abortive remedy. Hippocrates, 400 B.C., Greece

Biologically, from the moment of conception this new human being is not a part of the mother’s body. Since when does a mother’s body have male genitals, two brains, four kidneys. The preborn human being may be dependent upon the mother for nutrition, however, this does not diminish his or her humanity, but proves it. Moreover, dependence upon a parent for survival is not a capital crime.

“To accept the fact that after fertilization has taken place a new human has come into being is no longer a matter of taste or opinion … it is plain experimental evidence.” The “Father of Modern Genetics” Dr. Jerome Lejeune, Univ. of Descarte, Paris

At the average time when a woman is aware that she is pregnant (the fifth to sixth week after conception), the preborn human being living inside her is metabolizing nutrition, excreting waste, moving, sucking his or her thumb, growing, and doing many other things that non-living things just do not do.  As early as 21 days after conception, the baby’s heart has begun to beat his or her own unique blood-type, often different than the mother’s.[25]  At 40 days after conception, brain waves can be read on an EEG, or an electroencephalogram.[26]

“By all the criteria of modern molecular biology, life is present from the moment of conception.” Dr. Hymie Gordon, Chairman, Department of Genetics at the Mayo Clinic

Medical science already refers to a spontaneous heart rhythm and the presence of brain waves to determine whether someone is alive at the other spectrum of human existence.  In simplistic terms, if an organ donor is in an automobile accident and is on life support in a hospital, the physician cannot “pull the plug” and donate the patient’s organs to others unless the patient is “brain dead” and his heart is not beating on its own. If the medical community maintained consistency with this generally-accepted medical definition of human life, then we would condemn every abortion after the time when the average woman discovers she is pregnant.  Every abortion, by the generally-accepted standards of medical science, aborts an innocent human life.

x

One of the most amazing photographs I have ever seen is of a surgery being performed on a 21 week-old fetus named Samuel Armas.  The boy is having surgery performed in utero for his spina bifida.  In the photograph, the unconscious boy’s hand is poking through the surgical incision in the uterus and is resting on the finger of the surgeon.  You can see the photo (above) also at http://www.michaelclancy.com

The picture paints a thousand words that my mere words cannot match, but allow me to draw attention to the obvious fact that the surgeon is performing surgery on one living human being who is residing in the womb of another living human being.

“Yeah,” the pro-choice attorney rebuts, “but is it a person?”

In Roe vs. Wade, Justice Harry Blackmun noted, “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development.  If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus‘ right to life would then be guaranteed specifically by the (Fourteenth) Amendment.”

According to Webster’s Seventh New Collegiate Dictionary, a person is “a human being.”  Attempts to render an entire class of human beings as “non-persons” based upon arbitrary qualities such as age and place of residence in order to discriminate against them is immoral and unjust.  History is full of infamous examples of governments legalizing the discrimination of an entire class of human beings by rendering them “non-persons.”  Jews were rendered “sub-humans” in Germany in the 1940’s and colonial slaveowners bought and sold Africans as “property.”  As a matter of fact, the Supreme Court in 1857 ruled that Dred Scott, a black slave, was not a “person” with rights but the “property” of his master.  Was the Court wrong then?  Of course!  The Supreme Court of 1973 that legalized abortion nationwide with its Roe v. Wade decision was just as immoral and unjust.  They dehumanized an entire class of human beings in order to legitimize wholesale discrimination against them.  Abortion may go down in history as the greatest human rights abuse of all time.[27]

As our nation’s founding documents make clear, the right to life is God-given and inalienable. The right to live cannot be legitimately usurped by men. No man, no government has the right to deprive one of life or liberty without a trial by jury, regardless of skin color, age, stage of development, level of dependence upon others for survival, or place of residence.

Abortion results in the death of an innocent human being.  It is immoral and unjust when evaluated in the light of the law of the land (our founding documents) and the divine commandment that forbids taking the life of an innocent human being (Exodus 20:13).

Coroner: Here’s a part of another medical essay from the same group on abortion.

Association of Pro-Life Physicians:[28]

One can rarely engage in a discussion over abortion without one of the rare cases being brought up to justify abortion:

  • ‘What if the woman is raped?’
  • ‘What if a thirteen-year old conceives through incest?’
  • ‘What if the fetus is deformed and unlikely to survive anyway?’
  • ‘What if the mother’s health is at risk?’ ‘What if the mother’s life is threatened by her pregnancy?’

We would be remiss to deny the emotional sway of these rare scenarios that would pull at the heart-strings of any compassionate physician. We grieve with our patients who endure such tragedies in life, and want to provide the best healthcare possible to them. But do these dire circumstances justify an abortion?

It is easy to prove that these objections to the pro-life ethic are insincere. What if someone brought up these arguments to justify the killing of an infant: ‘The baby was conceived through rape’ – ‘The infant is deformed and mentally handicapped’ – ‘The mother’s health is suffering as a result of her baby.’ Would anyone who endorses abortion in the womb openly justify the killing of an infant using these excuses?  No, they would not. This proves that these objections are insincere and that the heart of the matter is whether the fetus is a living human.  If it could be proven that the human fetus is just as alive and just as human as the infant, then these objections would not justify aborting a fetus any more than an infant. (For a thorough scientific argument proving that life begins at conception, please see the article on our website or the APP tract ‘When Does Human Life Begin?’)[29]

We must respond to all tragic circumstances of pregnancy from the unshakeable foundation of two indisputable premises: human life begins at conception, and it is always wrong to intentionally kill an innocent human being. The unborn child’s right to life and liberty is given by his or her Creator, not by his or her parents or by the state. The right to life is inalienable: that is, not to be trespassed upon by another. In tragic circumstances such as rape or incest, we want to care for both the mother and her unborn baby. We want to relieve the suffering of the mother and her unborn baby. It is never right to intentionally kill an innocent person, even if it does relieve another’s emotional or physical suffering. It’s not up to a vote, and our obligation to submit unto divine judgments does not sway with our circumstances.

We should not kill an unborn baby to alleviate the suffering of the mother any more than we should kill her infant to alleviate her suffering. Neither should we commit an abortion of a malformed fetus in order to prevent his or her suffering later in life.  Being handicapped is not a capital crime.  The intentional destruction of health is not compassionate and it is not healthcare, it is assault.  We must not be swayed from our pro-life ethic by emotional appeals that admittedly swell our eyes with tears.  Truth and compassion prevent us from this fatal compromise.

We find it extremely unfortunate that many pro-lifers have regarded the health of the mother to be a consideration in whether or not she should have the right to terminate the life of her pre-born baby.  Politicians who herald the title “pro-life” on the campaign trail frequently tout this health exception, as well as exceptions for rape and incest, as pragmatic compromises that will not offend political moderates and not alienate the pro-life community.  We do not consider this compromise consistent with pro-life Hippocratic principles at all.  To intentionally kill or condone the intentional killing of one innocent human being precludes one from being considered “pro-life” at all.  A murderer of one person is not any less a murderer if he allows thousands to live, nor if he saves thousands from dying!”

Coroner: But what about non-elective abortion cases, that is, those in which the life of the mother is endangered by a continuation of the pregnancy? In those cases, one might ask “What about the life of the innocent mother? What about her life in cases where continuing the pregnancy would endanger her life?

First we observe the overall rarity of such cases. According to Dr. Ron Paul, an obstetrician and presidential candidate who has delivered some 4,000 babies, the cases where the mother’s life is actually in danger are practically nil. “In delivering nearly 4,000 babies, I personally never came across a need even to entertain the thought of therapeutic abortion for the health of the mother . . . .”[30]

Dr. Paul’s observation about “therapeutic” abortions is confirmed by the Association of Pro-Life Physicians in a paper entitled “Are There Rare Cases
When an Abortion is Justified?” After the discussion on elective abortions, the authors turn to the matter of “therapeutic” abortions.

Association of Pro-Life Physicians: “When the life of the mother is truly threatened by her pregnancy, if both lives cannot simultaneously be saved, then saving the mother’s life must be the primary aim.  If through our careful treatment of the mother’s illness the pre-born patient inadvertently dies or is injured, this is tragic and, if unintentional, is not unethical and is consistent with the pro-life ethic.  But the intentional killing of an unborn baby by abortion is never necessary.

Most of what passes as a therapeutic, or medically-necessary abortion, is not necessary at all to save the mother’s life.  For example, if a mother has breast cancer and requires immediate chemotherapy to survive that can kill the baby, the physician will frequently recommend a therapeutic abortion.  Another example: if a mother has life-threatening seizures that can only be controlled by medication that will kill or severely deform her unborn child, the physician will frequently prescribe a therapeutic abortion.  In both of these cases, the abortion is not necessary to protect the mother’s health. The necessary medication may injure or kill the pre-born child, but this is no justification for intentionally killing the child.  If the child is injured or dies from the medication prescribed to the mother to save her life, the injury was unintentional and, if truly medically necessary, not unethical.

Let us illustrate this principle further: if a rescuer is venturing into a burning vehicle to try to save its injured occupants, and is only able to save one of the two occupants, is it justifiable for him to then take out his gun and shoot the occupant he was unable to save?  Of course not!  Intentionally killing those you were not able to save is never justified in healthcare.  We have the technology and expertise to provide quality healthcare to a pregnant woman without intentionally killing her unborn baby, regardless of the severity of her disease.

We are convinced that much of the pressure physicians place upon ailing women to get a therapeutic abortion is due to fear of malpractice suits.  Two female patients have reported to me that physicians unduly pressured them into getting an abortion because their contraception failed and they conceived at the same time that they were taking a medication that could be very injurious to an unborn child.  The motive for prescribing an abortion in such cases is not compassion, but completely selfish.  The potential of a malformed or mentally retarded child does not ever justify killing the child, malpractice threats notwithstanding.  It is always wrong to intentionally kill an innocent human being, even if you are going to get sued if you let them live.

As we now carefully consider a scenario when the mother’s life would be truly threatened by her pregnancy, let us remind ourselves of our two basic premises: human life begins at fertilization, and it is absolutely wrong to intentionally kill innocent human beings.  We must stand true to these foundational principles through every emotional appeal and in every tragic scenario if we are to have any principles at all for which to stand.

‘What About an Ectopic Pregnancy?’

The abortion exception for the life of the mother is the exception that most commonly seduces the sincere pro-lifer.  The scenario in which this exception is most frequently packaged is an ectopic pregnancy, which is when the embryo attaches somewhere inside the mother’s body in a place other than the inner lining of the uterus.  It is argued that in an ectopic pregnancy, an abortion must be performed in order to save the mother’s life.

What is rarely realized is that there are several cases in the medical literature where abdominal ectopic pregnancies have survived!  There are no cases of ectopic pregnancies in a fallopian tube surviving, but several large studies have confirmed that time and patience will allow for spontaneous regression of the tubal ectopic pregnancy the vast majority of the time.  So chemical or surgical removal of an ectopic pregnancy is not always necessary to save the mother’s life after all.

However, if through careful follow-up it is determined that the ectopic pregnancy does not spontaneously resolve and the mother’s symptoms worsen, surgery may become necessary to save the mother’s life.  The procedure to remove the ectopic pregnancy may not kill the unborn child at all, because the unborn child has likely already deceased by the time surgery becomes necessary.  But even if not, the procedure is necessary to save the mother’s life, and the death of the unborn baby is unavoidable and unintentional.

A chemical abortion with a medicine called methotrexate is often recommended by physicians to patients with early tubal ectopic pregnancies, when the baby may still be alive, to decrease the chances of a surgical alternative being necessary later, but we have found this to be an unnecessary risk to human life.  We offer the following true case to demonstrate this point.

One patient was diagnosed with a tubal ectopic pregnancy by her obstetrician, and he informed her that they were fortunate to have made the diagnosis early and that she should have a methotrexate abortion. The patient was pro-life, and did not want to take the medicine, but the physician insisted. The baby was not going to survive, he argued, and a chemical abortion now could prevent the need for a surgical procedure later.  The chemical abortion would lessen her chances of a rupture of her fallopian tube and subsequent life-threatening hemorrhage.  The chemical abortion was also better at preserving future fertility than surgical removal of the ectopic pregnancy later.  Feeling like she had no other reasonable alternative, she took the methotrexate.

However, there was a complication. Two weeks later, she still had vaginal bleeding and pelvic discomfort. A repeat ultrasound confirmed the physician’s worst fears: his patient was pregnant with twins – one in the fallopian tube, and one in the uterus!  He missed the uterine pregnancy in his ultrasound examination, and that baby was dying from his prescription.

Holding off surgery and watchful waiting in this case might have resulted in spontaneous resolution of the tubal pregnancy or would have required surgical removal of the tubal pregnancy when the embryo was likely to be dead, but in both cases the uterine pregnancy would probably have survived. Unfortunately, the chemical abortion killed both babies, much to the dismay of this young pro-life woman.

It is only ethical to remove the tubal pregnancy if spontaneous resolution does not occur after watchful waiting and if the physician is 100% certain that there are no twins. At this point, the embryo in the fallopian tube is likely to be dead and, even if not, the death is unavoidable and unintentional, and the procedure is necessary to save the life of the mother.

In conclusion, [except in the extremely rare cases just above] there are no occasions in which the intentional killing of the pre-born child is justified. Scientific fact and divine law are clear: life begins at conception, and there are no exceptions to the prohibition of intentionally killing an innocent human being. We must stand true to these foundational principles through every emotional appeal and in every tragic scenario if we are to have any principles at all for which to stand.”[31]

  • 21.82 The Legal Case

Coroner: Let us now present the real constitutional case that prohibits abortion—the case never made. Far from allowing elective abortions, the Constitution outlaws it. The reasoning follows.

  • 21.821 The Constitution Itself Prohibits Abortion
  • 21.8211 5th, 9th, & 14th Amendments and the Prohibition Against Bills of Attainder Prohibit Abortion

No legislation is needed, because the provisions are self-executing.

Coroner: The legal case against abortion is also indisputable.

  • 21.82111 Pertinent Federal Constitutional Provisions

Article 1, §9: “No Bill of Attainder . . . shall be passed.” (Applies to federal legislation)

Article 1, §10: No State shall * * * pass any Bill of Attainder (Applies to state legislation)

Amendment 5: Federal Due Process: “No person . . . shall be deprived of life, liberty, or property, without due process of law . . . .”

Amendment 9: Unenumerated Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Declaration of Independence: Rights to Life, Liberty, and Property; Government’s Duties to Secure Those Rights: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .[32]

Amendment 14, §1: Protections of persons from unlawful state action. “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Coroner: Because there are some differences in the reasoning depending upon whether the abortion takes place within the territorial jurisdiction of a state or within a federal enclave, we must divide the argument into state locale cases and federal locale cases. By state locales, we mean all real property in the United States which is not a federal enclave. And by federal locales, we mean all real property, such as the District of Columbia, or a territory such as Puerto Rico, which is subject to direct federal governance.[33]

  • 21.821111 State Locale Cases

—The Bill of Attainder Case Against State Locale Abortions

Coroner: The next four paragraphs are from the Technical Law Journal.[34]

  1. No State shall * * * pass any Bill of Attainder . . . .[35]
  2. A bill of attainder is a “legislative act that singles out an individual or group for punishment without a trial.”
  3. “The Bill of Attainder Clause was intended . . . as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply—trial by legislature.”  U.S. v. Brown[36]
  4. Justice Rehnquist: A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.”[37]

State laws[38] permitting the elective killing of unwanted, unborn (and sometimes born) children are bills of attainder, i.e. legislative acts that single out the unwanted for punishment without trial. As Justice Rehnquist writes above, only courts may meet out punishments after trial; and when legislatures decree a class punishable without trial, the legislature in effect changes itself into a court in violation of the constitutional command of separation of powers.

—The Equal Protection Case Against State Locale Abortions

Coroner: There is another provision which requires states to protect unborn life: “[no state may] deny to any person within its jurisdiction the equal protection of the laws.”

At the time the 14th was adopted, blacks were being regularly brutalized by gangs of thugs and killed by lynch mobs. Their properties were being destroyed. The abysmal failure of the South to protect blacks was an American disgrace that needed to be quickly remedied. The remedy the 14th Amendment Framers devised was the Equal Protection Clause, which, by its terms, required states to protect blacks by enforcing laws against mayhem, murder, and so on.

Professor Raoul Berger makes that point well:

What then is the substantive content of the words “equal protection of the laws”? The almost exclusive focus on “equal” has obscured the significance of the word “protection.” Yet it is “protection” that is the subject of discourse; “equal” is the modifier. Whatever “protection” is furnished must be “equal.” What, it needs to be asked, was to be protected? The abysmal failure of the South to protect the “person and property” of blacks against violence and murder, to safeguard the means whereby they could exist, furnishes the answer. That approach can rescue analysis from treating the word “equal” as if it were a crystal ball. “Protection,” if given, must be impartial.[39]

The problem “equal protection” addressed was how to guarantee that every person, citizen or otherwise, within a state was entitled to the same law enforcement protection, and the immediate effect was that blacks could legally insist, for example, on the same police protection as whites.

The same “equal protection” rationale applies to unborn persons: states must guarantee the same police protection to unborn babies as it does for all other persons. Consequently, just as states were constitutionally-bound to protect blacks from violence and murder, states have the constitutional duty to protect the unborn from homicide.

—The Due Process Case Against State Locale Abortions

Abortions in state locales are also barred by the 14th Amendment Due Process Clause: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Because of the Constitution’s Supremacy Clause,[40] the 14th’s Due Process Clause overrides any state laws that permit elective abortions.

Due process normally applies to require a judicial hearing before a defendant can be executed, imprisoned, or fined; for due process requires notice, a judicial hearing for one whose life, liberty, or property is imperiled, and also a fair opportunity to be heard.[41] And the prosecution must overcome the presumption of innocence with a showing that the defendant is guilty beyond a reasonable doubt.

But because the person to be executed in an elective abortion would always be an innocent child, unborn life can never be deliberately taken by abortion—and therefore the 14th Amendment stands as an absolute prohibition against elective abortions. There are no exceptions for rape, incest, deformity, or convenience.

  • 21.821112 Federal Locale Cases

—The Bill of Attainder Case Against Federal Locale Abortions

Because the prohibition against bills of attainder also applies to the federal government, the case here is the same as the case against state locale elective abortions: they are constitutionally prohibited—but only if there is federal legislation allowing abortion.

But as there are no federal statutes specifically codifying Roe v. Wade[42], it would seem that there is no bill of attainder case to be made against federal locale abortions.

However, if one examines Roe closely, it becomes evident that the court decision was itself legislation. Consider the passages just below, which go far beyond a judicial decision and on into the sphere of legislation.

“3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

  1. The State may define the term “physician” to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined.”[43]

Coroner: In other words, the decision not only reads like a statute, it is a statute.[44] As dissenting Justice Rehnquist wrote: “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”

Consequently the decision itself, though emanating from a court, is in substance and form, legislation in violation of the bill of attainder provision.

—The 9th Amendment Case Against Federal Locale Abortions

Coroner: Unlike the 14th Amendment, the 5th Amendment does not have an Equal Protection Clause. However, the 9th Amendment (which binds only the federal government) is undergirded by the Declaration of Independence’s proclamations that “all men are created equal” and “to secure these rights, Governments are instituted among Men”.[45] That provision in effect supplies a federal equal protection guarantee for the born and unborn. Both must be protected by existing laws prohibiting murder and mayhem. [46]

The key to understanding federal equal protection is to realize that abortion is homicide, and if the federal government permits homicide of unborn infants, while otherwise prosecuting other murder cases, it is invidiously discriminating against the infants by failing to protect their lives.

—The 5th Amendment Due Process Case Against Federal Locale Abortions

Coroner: Federal locale cases include cases arising in federal enclaves: the District of Columbia, federal properties, and federal territories.

The 5th Amendment Due Process Clause (which applies only to the federal government, but which is almost identical to the 14th Amendment Due Process discussed above) says, “No person shall be deprived of life, liberty, or property, without due process of law . . . .”

Therefore the conclusion regarding state locales above also applies to federal properties; and consequently the 5th stands as an absolute prohibition against elective abortions. As we said, because the person to be executed in an abortion would always be an innocent child, unborn life can never be deliberately taken by abortion; and therefore the 5th Amendment stands as an absolute prohibition against elective abortions in federal enclaves. And again, there are no exceptions for rape, incest, deformity, convenience, or other elective abortions.[47]

 

[1] http://www.angelfire.com/ny/YouthGroup1/i2hadlove.html

[2] http://en.wikipedia.org/wiki/Hippocratic_Oath.

[3] See http://www.pbs.org/wgbh/nova/doctors/oath _modern.html.

[4] http://blog.prolifewisconsin.org/2013/07/18/pope-condemns-abortion-in-1588/

[5] http://www.answers.com/topic/abortion

[6] http://www.answers.com/topic/griswold-connecticut; http://supreme.justia.com/cases/federal/us/381/479/

[7] http://www.answers.com/topic/roe-v-wade#ixzz2bgFmOHBn http://supreme.justia.com/cases/federal/us/410/113/

[8] http://www.answers.com/topic/roe-v-wade http://supreme.justia.com/cases/federal/us/410/113/

[9] http://supreme.justia.com/cases/federal/us/410/113/

[10] http://supreme.justia.com/cases/federal/us/410/113/

[11] http://www.answers.com/topic/roe-v-wade

[12] http://supreme.justia.com/cases/federal/us/492/490/

[13] http://www.answers.com/topic/webster-v-reproductive-health-services

[14] http://www.answers.com/topic/akron-v-akron-center-for-reproductive-health-inc ; http://supreme.justia.com/cases/federal/us/462/416/ (1983)

[15] http://supreme.justia.com/cases/federal/us/476/747/case.html http://www.answers.com/topic/thornburgh-v-american-college-of-obstetricians-and-gynecologists

[16] http://www.answers.com/topic/akron-v-akron-center-for-reproductive-health-inc

[17] http://supreme.justia.com/cases/federal/us/505/833/

[18] http://supreme.justia.com/cases/federal/us/505/833/

[19] http://supreme.justia.com/cases/federal/us/505/833/

[20] http://supreme.justia.com/cases/federal/us/530/914/

[21] http://supreme.justia.com/cases/federal/us/323/214/case.html http://www.answers.com/topic/korematsu-v-united-states (1944)

[22] https://supreme.justia.com/cases/federal/us/60/393/case.html http://www.answers.com/topic/dred-scott-case (1857)

[23] Only seven years later, however, the Supreme Court decided Gonzales v. Carhart, http://supreme.justia.com/cases/federal/us/550/05-380/ (2007) which, while not formally overruling Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps the greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5-4 vote, upheld a federal criminal statute that prohibited an overt act to “kill” a fetus where it had been intentionally “deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common “intact dilation and excavation.” The Court found that the federal statute was not unconstitutionally vague because it provided “anatomical landmarks” that provided doctors with a reasonable opportunity to know what conduct it prohibited. Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns. http://law.justia.com/constitution/us/amendment-14/31-abortion.html

[24] The Association of Pro-Life Physicians, 5063 Dresden Court Zanesville, Ohio  43701. Am Fam Physician. 2000 Feb 15;61(4):1080-1088. http://www.prolifephysicians.org/rarecases.htm

[25] Moore & Persaud, The Developing Human, p.310; Nilsson & Hamberger, A Child is Born, p.86; Rugh & Shettles, From Conception to Birth, p.217.

[26] Dr. H. Hamlin, Life or Death by EEG, JAMA, Oct.12, 1964, p.113.

[27] Some 56 million in the U.S. alone since Roe.

[28] http://www.prolifephysicians.org/rarecases.htm

[29] http://www.prolifephysicians.org/lifebegins.htm

That’s the same essay we quoted in its entirety above in this section.

[30] http://files.meetup.com/504095/Ron%20Paul-Abortion%20and%20Liberty.pdf

[31] http://www.prolifephysicians.org/rarecases.htm

The relative rarity of maternal death from ectopic pregancies is confirmed by other sources: Here is part of a paper by JOSIE L. TENORE, M.D., S.M., Northwestern University Medical School, Chicago, Illinois (Am Fam Physician. 2000 Feb 15;61(4):1080-1088) .

“The case-fatality rate has declined from 35.5 maternal deaths per 10,000 ectopic pregnancies in 1970 to only 3.8 maternal deaths per 10,000 ectopic pregnancies in 1989. Even though overall survival has increased, the risk of death associated with ectopic pregnancy remains higher among black and other non-white minority women.* * *

To date, at least 14 studies have documented that 68 to 77 percent of ectopic pregnancies resolve without intervention. Unfortunately, no markers clearly identify which subset of patients has self-limited disease. One retrospective chart review of 236 ectopic pregnancies was unable to identify any parameters that were specifically associated with tubal rupture. Nonetheless, expectant management may be an option for the patient with a small ectopic pregnancy (less than 3.5 cm in greatest dimension) and low, declining β-hCG values who is willing and able to comply with close follow-up.” http://www.aafp.org/afp/2000/0215/p1080.html

The paper continues with statistics on maternal mortality rates:

“In 2007, the latest year for which data are available, the maternal mortality rate was 12.7 deaths per 100,000 live births, compared to a low of 6.6 per 100,000 in 1987. This represents a total of 548 women who died due to maternal causes in 2007. http://mchb.hrsa.gov/chusa11/hstat/hsi/pages/208mm.html

The death of a woman during pregnancy, at delivery, or soon after delivery is a tragedy for her family and for society as a whole. Sadly, about 650 women die each year in the United States as a result of pregnancy or delivery complications.”http://www.cdc.gov/reproductivehealth/MaternalInfantHealth/Pregnancy-relatedMortality.htm

[32] Found in the United States Statutes at Large, p. 1 @ http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=124

[33] For lack of time, I avoid the question as it applies to federal military bases or installations within the borders of states.

[34] http://www.techlawjournal.com/glossary/legal/attainder.htm

[35] U.S. Const., Article 10, as applicable to states. Virtually identical in verbiage is Article 9 which applies as against the federal government. “No Bill of Attainder . . . shall be passed.”

[36] 381 U.S. 437, 440 (1965). http://supreme.justia.com/cases/federal/us/381/437/

[37] William H. Rehnquist, The Supreme Court, p. 166.

[38] The Washington Post of March 28, 2013 reported, “Abortion is allowed in all states at up to 5 weeks.”

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/28/the-landscape-of-abortion-bans-in-one-must-see-map/

[39] The Fourteenth Amendment and the Bill of Rights, pp. 122-123.

[40] Article 6. * * *

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’

[41] “The fundamental requisite of due process of law is the opportunity to be heard. Louisville & N. R. Co. v. Schmidt, 177 U.S. 230, 236; (1900) ⊗ @ http://supreme.justia.com/cases/federal/us/177/230/; Simon v. Craft, 182 U.S. 427, 436 (1901) ⊗ @ http://supreme.justia.com/cases/federal/us/182/427/case.html And it is to this end, of course, that summons or equivalent notice is employed.” Grannis v. Ordean, 234 U.S. 385, 394 (1914) ⊗ @ http://supreme.justia.com/us/234/385/case.html

[42] http://supreme.justia.com/cases/federal/us/410/113/case.html

[43] http://supreme.justia.com/cases/federal/us/410/113/case.html

[44] Not unlike the statute the court wrote in Miranda v. Arizona (1966) ⊗ @ http://supreme.justia.com/cases/federal/us/384/436/

[45] The matter of the Declaration as part of the Constitution is discussed in Vol. 1.

[46] See, for example, Yick Wo v. Hopkins, 118 U.S. 356 (1886) ⊗ (unequal administration of law) @ http://laws.findlaw.com/us/118/356.html

[47] Again, as said above, “It is only ethical to remove the tubal pregnancy if spontaneous resolution does not occur after watchful waiting and if the physician is 100% certain that there are no twins.  At this point, the embryo in the fallopian tube is likely to be dead and, even if not, the death is unavoidable and unintentional, and the procedure is necessary to save the life of the mother.”

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